Airport Aviation Services Inc.

AIRPORT AVIATION SERVICES Airport Aviation Services Incorporated and Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, Local 2725 and Union In- dependiente de Trabajadores de Aeropuertos, Intervenor Cases 24-CA-4922, 24-CA-4966, and 24-CA-5040 January 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On May 28, 1985, Administrative Law Judge Joel M Harmatz issued the attached decision The General Counsel and the Union filed exceptions and supporting briefs, the Intervenor' filed cross- exceptions and a brief, and the Respondent filed a reply brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions as modified below and to adopt the recommended Order 3 We agree with the judge's finding that the Re- spondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish the 1982 payroll requested by the Union in 1984 4 Contrary to the judge, ' Union Independiente de Trabajadores de Aeropuertos (VITA) is the Petitioner in Case 24-RC-6852 in which ballots cast in an election con ducted on March 29 1984 were impounded pending the resolution of charges in the instant cases UITA was permitted to intervene to the extent that it could be affected by the remedy 2 The General Counsel and the Union have excepted to some of the judge s credibility findings The Board a established policy is not to over rule an admini trative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are in correct Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Ctr 1951) We have carefully examined the record and find no basis for reversing the findings The Union asserts that the judge s conduct at the hearing evidences bias After careful examination of the record we are satisfied that the al legation is without merit 3In addition to its reply brief the Respondent filed an informative motion seeking to correct certain apoendices attached to the General Counsels posthearing brief to the judge The corrections relate to the number of employees hired and discharged or retained on completion of the 45-day probationary period in the years 1983 and 1984 As the motion is unopposed it is granted However in view of our findings we deem it unnecessary to rely on the corrections contained in the motion " For the reasons stated by the judge we agree with his findings that the Respondent did not unlawfully terminate newly hired employees refuse to discuss grievances that were the subject of pending unfair labor practice charges threaten an employee with discharge withdraw recog ration from the Umon and thereafter change certain terms and conditions of employment and refuse to respond to the Umon s June 6 1984 mfor matron request The withdrawal of recognition is discussed further below In the absence of exceptions we affirm the judge s finding that the Re spondent violated Sec 8(a)(5) and ( 1) of the Act by refusing to answer grievances that arose during the life of the expired collective bargaining agreement 823 however, we find that the Respondent likewise violated the Act by submitting inaccurate and in complete responses to the Union's October 7 and 26, 19835 requests for information In an October 7 letter referenced "new hired em- ployees," the Union requested the Respondent to furnish the names, hire dates, pay rates, and classifi- cations of all newly hired employees within 5 days of their employment, as required by article 18, sec- tion 3, of the collective bargaining agreement In this letter Union Representative Juan Maldonado noted that the Union had received the names of "some" new employees but that the information supplied at no time included hire dates, pay rates, and classifications In response to this request, on October 13, the Respondent's vice president and general manager, Federico Bauzo, submitted a letter that included the names of four new employ- ees and their "hire dates " Attached were four per- sonnel action forms that indicate that the "effective date," i e , ostensibly the hire date, for two of the employees was August 31 and for the other two September 21 The personnel action date for all four employees was September 25 The forms indi- cate that each was appointed as a part time em- ployee earning $4 60 an hour and they include each employee's classification or position description On October 26, Maldonado submitted another request for information that noted that on August 9 the Respondent had said it would supply an up-to- date list of all employees in its employ This letter specifically requested the names and addresses of all employees as well as their dates of hire, pay rates, and classifications On October 31, Bauzo sent a computerized list of employees and the re- quested data pertaining to each employee The cover letter to which this list was attached states that it is 'a list of all hired employees (Regu- lar/Part-time) working at present " The General Counsel alleged that the responses were inadequate and intentionally incomplete, thereby constituting unlawful failures and refusals to supply relevant requested information Specifi- cally, the General Counsel notes that the requests in issue were preceded by three requests for the same or similar information dating back to Febru- ary 23, when the Union first accused the Respond- ent of discnminatonly discharging new employees before they could complete probation6 and that 5 Unless otherwise indicated all dates refer to 1983 a The General Counsel alleged that the Respondent methodically ter minated these employees to circumvent the vesting of rights under the union shop provision of the collective bargaining agreement On comple tion of the 45-day period probationary or temporary employees became regular employees and their seniority dated back to their initial hire date As noted above we have affirmed the judge s finding that this practice did not violate Sec 8(a)(3) of the Act 292 NLRB No 87 824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD neither response to the October requests lists pro- bationary employees Regarding the response to the October 7 request, Maldonado testified that the inclusion of an `effective date" and an "action date" made the information submitted ambiguous, and the General Counsel adduced evidence from the Respondent's personnel files to show that nei ther date reflects the actual initial hire date Fur- ther, the record discloses that 28 employees were hired between August 9, when the Respondent last responded to an information request from the Union, and October 13, and that the Respondent included just 4 of these employees in its October 13 response Another six employees whose names do not appear in submissions to the Union were hired by the time of the Respondent's October 31 re- sponse The judge discredited Maldonado's testimony that he had apprised the Respondent of the insuffi ciency of these responses, and found that the Re- spondent "lacked any intention of gaining advan tage" and that it "substantially complied with the dictates of Section 8(d) of the Act " He therefore dismissed these allegations of the complaint We find it significant, however, that the Re- spondent was fully aware of the basis for the re- quests as early as February 23, when the Union first complained about the discharge of probation- ary employees, reminded the Respondent of its ob- ligation to notify the Union of new hires within 5 days of their hire, and requested a list of all em- ployees 7 The Union reminded the Respondent of its obligation regarding new hires again in requests dated April 27 and August 4 Equally significant is the fact that the August information request ex- pressed yet another concern, i e , that the ratio of part-time to full-time employees exceeded the number permitted by the agreement 8 The rel- evance of the requested information is not disputed The inadequacy of the October responses is plainly established by evidence that the names of as many as 33 new hires were omitted and that the initial hire dates submitted for the 4 new employees that the Respondent did acknowledge are incor- rect In view of the Union's repeated requests for this information, and particularly in light of the Re- spondent's awareness of the reasons underlying the requests, it is readily apparent that the insufficiency of the responses was not inadvertent Under these circumstances, we find that the Respondent failed substantially to comply with the Union's October 7 7 The Respondent submitted a list of employees to the Union on March 9 but no information about new hires was included 8 By terms of the collective bargaining agreement when the number of part time employees exceeded one third of the number of full time em ployees part time employees in excess of the ratio were automatically to become full time employees and 26 requests for information, and that these fail- ures constitute a refusal to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act Our finding that the Respondent unlawfully failed to respond to the Union's October informa- tion requests makes it necessary to consider wheth- er that conduct-combined with the Respondent's unlawful failure to furnish the 1982 payroll and to answer grievances, as found by the judge-renders the Respondent's June 1984 withdrawal of recogni- tion from the Union unlawful We find it does not The judge found that the Respondent lawfully withdrew recognition based on its receipt of a peti- tion, signed by a majority of employees, stating that they no longer desired to be represented by the Union 9 In so finding, the judge concluded that the Respondent's refusal to furnish the 1982 payroll and respond to grievances in March 1984 did not tai it the petition because the refusals "had no direct adverse impact upon wages or benefits and their long term effects were imperceptible at the time of the deauthorization activity " He deemed the refusal to furnish the payrolls too remote in nature and the evidence surrounding the refusal to respond to grievances to be too vague to infer that employee allegiances were influenced thereby We agree with the judge's conclusion that this conduct did not taint the petition Similarly we find that there is no nexus between the October 1983 8(a)(5) and (1) violations and the withdrawal of recognition There is no evidence that the employees were aware of the Respondent's failure to comply with the October 1983 informa- tion requests or that they became disaffected be- cause of it Further, we note that although the Oc- tober information requests pertained to newly hired employees, the Respondent's treatment of these employees in terminating many of them prior to their completion of the probationary period has not been found to be unlawful Even if the record es- tablished that the employees' dissatisfaction with the Union resulted from the discharge of proba tionary employees (who were not in the unit), this practice was permitted by the collective-bargaining agreement and justified by business considerations and therefore lawful, as the judge found Thus, the Respondent's unlawful conduct with regard to the October 1983 requests either singly or in combina- tion with the other unlawful conduct found cannot be said to have tainted the petition on which the withdrawal recognition was based Inasmuch as our limited reversal of the judge's findings does not 8 A second petition given to the Respondent at the same time stated that employees desired to deauthonze dues checkoff AIRPORT AVIATION SERVICES require modification of the recommended Order, we shall adopt it ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Airport Aviation Services Incorporated, Isla Verde, Puerto Rico, its officers, agents, successors, and assigns, shall take the action set forth in the Order Efrain Rivera Vega Esq, for the General Counsel Rafael Cuevas Kuinlam Esq Rafael Medina Zerpa Esq, and Angel Morales Esq, of Hato Rey, Puerto Rico, for the Respondent Juan L Maldonado International Representative, of Rio Piedras Puerto Rico, for the Charging Party Paul Schachter Esq (Reinhardt & Schachter), of Newark, New Jersey, for the Intervenor DECISION STATEMENT OF THE CASE JOEL A HARMATZ, Administrative Law Judge This proceeding was heard by me on 21, 22, 23, and 25 Janu ary 1985 in Hato Rey, Puerto Rico, on an original unfair labor practice charge filed on 2 March 1984, and an amended consolidated complaint issued on 7 December 1984, alleging that Respondent violated Section 8(a)(3) and (1) of the Act by terminating employees prior to completion of their probationary period in order to dis courage membership in the Charging Party, and violated Section 8(a)(5) and (1) of the Act by refusing to provide information to the Charging Party relevant and neces sary to performance of its function as exclusive bargain ing representative by refusing to bargain about gnev ances covered by pending unfair labor practice charges, and by abrogating unilaterally the grievance arbitration provisions established by a recently expired collective bargaining agreement The complaint further alleged that following expiration of that agreement, Respondent vio lated Section 8(a)(5) and (1) by withdrawing recognition from the Charging Party on 14 August 1984, and subse quently by unilaterally abrogating or altering preexisting terms and conditions of work In its duly filed answer Respondent denied that any unfair labor practices were committed Following close of the hearing, briefs were filed on behalf of the General Counsel Respondent and the Intervenor i On the entire record in this proceeding together with my opportunity directly to observe the witnesses while testifying and their demeanor, and on full consideration of the postheanng briefs it is found as follows ' By order of the Regional Director dated 19 June 1984 Union Inde pendiente de Trabajadores de Aeropuertos the Petitioner in Case 24- RC-6852 was granted intervention in this proceeding for only the limit ed issue with respect to the remedy that may be ordered herein See G C Exh 1(r) On 6 August 1984 the Board denied Intervenor s appeal from said Order allowing renewal before the administrative law judge At the hearing the scope of intervention was broadened by me to include all issues affecting the propriety of an 8(a)(5) remedy here I THE BUSINESS OF THE EMPLOYER 825 Respondent is a Puerto Rico corporation which pro vides ground support services to airlines operating into and out of the San Juan International Airport, including the loading and unloading of baggage and cargo, the ex terror and interior cleaning of aircraft, and related serv ices In the course of the operations, Respondent derives annual revenue valued in excess of $50,000 from persons engaged directly in the channels of commerce through the transport of passengers and cargo between Puerto Rico and the U S mainland and foreign countries The complaint alleges, the answer admits, and it is found that Respondent is an employer engaged in corn merce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and it is found that International Association of Machinist, and Aerospace Workers, AFL-CIO, Local 2725 (IAM) is a labor organization within the meaning of Section 2(5) of the Act A like finding is made with respect to Union In dependiente de Trabajadores de Aeropuertos (Interve nor) 2 III THE ALLEGED UNFAIR LABOR PRACTICES A Preliminary Statement Underlying this multifaceted and factually complex proceeding is a fundamental issue about whether statuto ry remedies ought be invoked to preserve the representa tive status of an incumbent labor organization, under conditions where Board intervention might well prevent employee choice on an otherwise valid representation petition filed by a rival labor organization Thus, IAM had been the collective bargaining repre sentative of Respondent's blue collar work force at the Isla Verde International Airport since at least 1970 Over the years, the parties have negotiated a series of collec tive bargaining agreements the most recent of which ex pired on 11 April 1984 3 Prior to the expiration the in tervening Union filed a timely representation petition on 16 January in Case 24-RC-6852 seeking representation in the historic IAM unit Pursuant to a Decision and Di rection of Election issued by the Regional Director on 15 February an election was scheduled for 29 March with both IAM and Intervenor on the ballot In the meantime on 2 March IAM filed the first of a series of unfair labor practice charges alleging that Respondent had engaged in a variety of unfair labor practices de signed to undermine IAM s status as exclusive bargaining representative Nonetheless, the election was conducted on 29 March as scheduled However, no tally was ever issued, as the ballots were not opened and counted, but 2 Notice is taken of the fact that the Intervenor was found to be a labor organization in Case 24-RC-6852 and for purposes of this proceed mg retains that status at least insofar as the issues turn on whether a question concerning representation was effectively raised on its election petition in that case See G C Exh 31 2 Unless otherwise indicated all dates refer to 1984 826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD impounded pending resolution of the pending unfair labor practice charges. After the election and the expiration of the most recent collective-bargaining agreement , on 14 August, Respondent officially withdrew recognition from IAM as the exclusive representative of employees in the historic unit. At that time, the IAM was informed by mail that based on evidence submitted to the Employer by a group of unit employees, the Employer possessed "reasonable doubts that IAM represents the majority of the employ- ees in the bargaining unit ." The letter went on to state as follows: We are confident that once the cases pending before the honorable National Labor Relations Board are heard and the votes cast in the recent elections are counted, said Board will announce which union will have the legitimate representation of the employ- ees.4 With the exception of 8(a)(3) allegations concerning Respondent's treatment of probationary employees, the allegations of unfair labor practices in this proceeding occurred during three distinct timeframes, namely, (1) those placed prior to the election; (2) those allegedly oc- curring between the election and the withdrawal of rec- ognition; and finally (3) those following the Respondent's termination of the historic bargaining relationship with IAM. Although Case 24-RC-6852 is not consolidated here, any unlawful conduct occurring prior to the elec- tion quite possibly could influence the validity of the election conducted,5 and any unfair labor practice find- ings involving conduct prior to 14 August will reflect, perhaps decisively, on the lawfulness of the withdrawal of recognition on that date.6 All allegations occurring after 14 August involve challenges to the Respondent's refusal, on various grounds, to bargain with IAM in good faith, matters that will warrant dismissal if the bar- gaining relationship previously had been terminated on legitimate grounds.' 4 See G .C. Exh. 23(a). 5 The issuance of an affirmative bargaining order as sought by the General Counsel would becloud Case 24-RC-6852. There is a strong suggestion in Board policy that no question concerning representation can exist until compliance with such an 8(a)(5) order is completed. See, e.g., Mercy Memorial Hospital Corp., 221 NLRB 1 , 2 (1975). See, e.g., Anvil Products, 205 NLRB 709 (1973). 7 There is no merit in the Intervenor 's contention that the complaint should be deferred to contractual dispute settlement procedures in ac- cordance with United Technologies Corp., 268 NLRB 557 ( 1984). Here, there is no viable request for arbitration by any party to the contract. The Intervenor is in no position to provide assurance that affirmative means of adjustment are available. To even suggest that the Intervenor has standing to raise this issue is to risk forfeiture of IAM access to any forum, a result not contemplated by either Collyer Insulated Wire, 192 NLRB 837 (1971), or its progeny. See United Aircraft Corp., 204 NLRB 879 (1973); National Radio Co., 198 NLRB 527 (1972), to the effect that the deferral policy rests on "the reasonableness of the assumption that the arbitration procedure will resolve the dispute in a manner consistent with the standards of Spielberg." See also Teamsters Local 287 (Reed & Graham), 272 NLRB 348, JD fn. 1 (1984). In any event in this case, issues arising during the term of the contract are linked inextricably with matters, which according to Respondent's own position, occurred after expiration of the contract and hence would not be appropriate for defer- ral. S.O.L. Roofing, 271 NLRB I fn. 3 (1983). B. Concluding Findings 1. The alleged discrimination The most far-reaching of the allegations of illegality in this proceeding arises from the General Counsel 's claim that since 2 September 1983, the 10(b) cutoff date, Re- spondent violated Section 8(a)(3) and (1) of the Act by its practice of terminating newly hired employees on a wholesale basis. In this connection , it is noted that suc- cessive collective-bargaining agreements between the Re- spondent and IAM included probationary provisions controlling the conditions of work of new hires . That in the most recent contract, provided in article XVIII, sec. 3, p. 28 as follows: Except as otherwise provided in this Agreement, new employees hired after the effective date of this Agreement, shall be regarded as temporary employ- ees for the first forty five (45) days of their employ- ment and there shall be no responsibility on the part of "THE COMPANY" for the reemployment of temporary employees if they are discharged or laid off during this period . If retained in the service after the probationary period, the names of such employ- ees shall then be placed on the seniority list for their respective classifications in order of the date of their original hiring at point employed. "THE COMPANY" will furnish the Local Committee with the name, classification , department and rate of pay of all new employees within 5 days after em- ployed. In his opening statement at the hearing , the General Counsel conceded that "it is Respondent 's policy or practice to routinely discharge unit employees prior to the completion of their 45 days' probationary period and replace them by other employees in equal number." a Recent experience of new employees under this practice is demon- strated by summaries of Respondent's personnel records covering the 2- year period 1 January 1983 through 31 December 1984. See G.C. Exhs. 42(a) and (b). This data confirms terminations of newly hired employees in high volume during the 45-day period. But the documentary proof fails to support that all newly hired were terminated . As far as can be ascertained from the evidence, Respondent retained employees beyond the 45-day period on a regular basis, and in every month except February and July 1983 and February 1984. In calendar 1983, 27 employees were retained on Respondents payroll for a period in excess of 45 days and in 1984 some 30 more were allowed to complete their probationary period. The documentation is completely consistent with Respondent's explana- tion that the temporary or probationary employees were retained only on consideration of two factors: ( 1) the work competence of the individual probationer; and (2) the availability of a permanent position. This latter criterion, however, was complicated by the fact that permanent vacancies were created as a function of permanent manpower demands but not as a means of meeting irregular , nonrecurrent seasonal fluctuations . In other words, Respondent exercised its option of retaining probationary employ- ees, but then terminating them unless demand for their labor could be jus- tified on a permanent basis. In this connection it is noted that after close of the hearing, counsel for the General Counsel moved to correct Exhs. 49(a) and (b) refered to above. Though the representations supporting that request are presum- ably accurate, the proposed changes are insignificant and in no sense could influence the result reached . The motion is denied as failing to warrant further administrative action delaying ultimate resolution of the issues presented. AIRPORT AVIATION SERVICES The General Counsel contends that the Employers prac tice was designed to preclude eligibility for contract ben efits9 and to avoid application of the contractual union shop provision to the new hires 10 Although there is little room for argument that these represent the `effects" of Respondent's practice, the General Counsel does not assert that the terminations in volved a departure from contractual prerogatives, nor does he claim that treatment of the newly hired was ac companied by specific evidence of antiunion motiva tion 11 Indeed, any other view would be difficult to maintain on the instant record For, probationary em ployees, were hired, fired, rehired, and retained without interest in, or knowledge of union sentiment Further more, it does not appear that Respondent's practice in this regard was initiated or modified under conditions giving rise to the slightest suspicion that it was systemati cally designed to aid organization by a rival organization or to weaken the IAM's representative base Sidestepping the issue of motive, the General Counsel zeros in on the avoidance by Respondent of contractual membership obligations to IAM as well as mitigation of its obligations in the area of work rules and liability for wages and fringe benefits It is argued that the result produced by the Employers action is inherently so prejudicial to union interests and so devoid of significant justification that no specific evidence of intent to dis courage union membership or other union animus is re quired' American Shipbuilding v NLRB, 380 US 300, 311-312 (1965), see also NLRB v Great Dane Trailers, 388 U S 26 (1967), and NLRB v Ene Resistor, 373 U S 221, 227 (1963) Unquestionably, the frequent discharge of new hires enabled Respondent to meet its work deriards while avoiding the higher labor costs and loss of flexibility that would be sustained were it to add permanent positions 9 The parties stipulated that during the probationary period new hires are not eligible for participation in fringe benefit programs It is also clear that the Respondent retains greater flexibility n imtiatmg and revising work assignments of probationary employees because they acquire no rights under contractual bidding procedures to In this latter regarding the relevant collective bargaining agreement see Jt Eiji i art VII p 11 which provides in material part as follows It shall be a condition of employment that all employees coy ered by this Agreement hired on or after its execution date shall or the forty fifth (45) day following the beginning of such employment become and remain members in good standing in the UNION Santiago Qumonez Torres a witness for the General Counsel test[ fled that Respondent s former personnel director Julio Purcell in Febru ary 1984 informed him that he knew Respondents practice was against the law In a like vein IAM International Representative Juan Maldon ado testified that in a conversation during the same month with Respond ent s attorney Rafael Cuevas the latter agreed that his client was violat ing the law in this respect Cuevas who was counsel of record for the Respondent in this proceeding did not testify Purcell terminated his em ployment with the Company n June 1984 and also was not made avail able Nonetheless the General Counsels testimony in this respect was not believed Maldonado was not regarded as a reliable witness He im pressed me as strongly argumentative and prone to pass on his own inter pretation of ambiguous events as fact The statements he imputed to Cuevas in the circumstances impressed me as entirely unlikely With re spect to the averments involving Purcell documented evidence refutes any basis for concluding the Respondent had an absolute policy of terms nating probationary employees Moreover it strikes as unlikely that the personnel director would have confessed illegality to Torres who at the time was an IAM official The testimony of Torres and Maldonado is re jected 827 As a corollary IAM membership was adversely affected However, far from any hostile device of discrimination, the practice in question entailed no more than a rightful exercise of contractually conferred prerogatives and sound business judgment Respondent simply utilized its contractual discretion by retaining the few probationers necessary to meet its regular, recurrent, and permanent work demands It was cheaper and more efficient to op erate in this fashion under a collective bargaining agree ment that placed no limitation on the quantity of new hires to be retained 12 Thus, not only was the practice consistent with Respondent's legitimate economic inter ests, it was also inoffensive to any bargain struck with the JAM See, e g , Dorsey Laboratory, 239 NLRB 857, 861 (1978) Nor are these legitimate interests offset by any readily identified federally guaranteed right which had been im periled by the action taken agamst probationary employ ees Probationary provisions are neither illegal, nonman datory, nor do they operate on their face to impede any right of employees protected by Section 7 of the Act Moreover, the limited retention rights they confer on probationary employees is a phenomenon not unfamiliar to the industrial scene Wide latitude is universally con ferred on employers in their handling of new hires under collective bargaining agreements One salient, if not the primary objective of such an arrangement, is to establish an economic scenario, within which an employer might evaluate new hires against its need for permanent em ployees while avoiding the cost and constraints other wise applicable under the subsisting collective bargaining agreement It is difficult to imagine that mere implemen tation of such a traditional arrangement would be consid ered by the authorities as falling within the category of inherently discriminatory devices contemplated by Amer- ican Shipbuilding v NLRB, supra, and related cases If there is no statutory right offended by the Employ er s practice, there obviously can be no destruction of important employee rights The absence of this indis pensable element distinguishes this case from Freezer Queen Foods, 249 NLRB 330 (1980) a case in which the General Counsel appears to place heavy reliance That case involved application of Great Dane, supra to proba tionary employees as a class However, all had engaged in a protected economic strike and the issue before the Board was validity of the employers action in reinstating the probationary employees under conditions penalizing them for their participation in such activity clearly pro tected by Section 7 of the Act Thus that which was deemed inherently discriminatory in Freezer Queen Foods was the reprisal agamst employees who as a class en gaged in activity protected by Section 7 of the Act Here, however, the General Counsel would extend the protective mantle of the Act to probationary employees, based solely on their status as such rather than their par ticipation in any activity protected by the Act The result sought by the General Counsel in this case is not 12 Compare however art XLI sec I of the collective bargaining agreement that does impose a limitation on the Employers right to use part time employees 828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD justified either by Freezer Queen, supra, or any other line of authority brought to my attention Equally untenable are the General Counsels additional arguments to the effect that denial to new hires of the fruits of the collective bargaining agreement negotiated by the union itself was a discriminatory act and unlaw ful First is the suggestion that the discouraging effect on membership in IAM of this practice was evidenced by the fact that the Intervenor was able to muster the neces sary showing of interest to support processing of its peti tion in Case 24-RC-6852 This is pure speculation De fections from IAM might have been translated into sup port of the rival labor organization in consequence of a spectrum of diverse considerations, and no rational ground exists for attributing this loss to Respondent s method of evaluating new hires Along the same line, the General Counsel argues that the practice discouraged membership in the IAM in that it exposed the IAM s in ability to protect probationary employees and to prevent assignment of unit work to nonunion employees In this instance, the General Counsels argument proves too much The same could be said of implementation of any subcontracting clause legitimately negotiated which causes a loss of unit work and possible constriction of the represented unit The fallacy in the General Court sel's argument is also evident from the fact that each time a probationary employee is terminated the contract mg union is denied the fruits of the union shop provi sions about that individual, while the employer saves the cost of fringes and avoids the loss of flexibility that would have been experienced had the individual been re tained beyond the contractual period Contrary to the General Counsel, if the employers vice be its having ex ercised contractual discretion too often the solution to the problem lies within the process of free collective bar gaining rather than a strained extension of statutory con cepts allowing findings of discrimination where actual proof of motive is wanting In sum the claim of inherent discrimination does not in this case involve employer action addressed to a group that had engaged in protected activity In addi tion, the effect of the Employers practice fails to damage IAM to an extent sufficiently extreme as to dis suade employees from supporting it generally Accord ingly the practice does not carry its own mdicia of wrongful intent Being too remote from any form of pro tected activity to be inherently fragmentary of important employee rights the Employers action here fell outside the proscriptive scope of Section 8(a)(3) and (1) of the Act and there being no specific evidence of antiunion motivation that allegation shall be dismissed 2 Other conduct preceding the election in Case 24-RC-6852 a The requests for information The complaint includes allegations that Respondent violated Section 8(a)(5) and (1) of the Act by breaching its duty to furnish information, pursuant to a series of IAM requests, beginning in the fall of 1983 which are outlined as follows (i) On 7 October 1983 and 21 March 1984 IAM requested Respondent to furnish the names dates of hire rates of pay, and job classifications of all newly hired employees (ii) Since 26 October 1983 IAM requested Re spondent to furnish the Union with the names dates of hire rates of pay and job classifications of all em ployees (iii) Since 2 September 1983, IAM requested Re spondent to furnish all payrolls for the preceding year (1982) (iv) Finally, the complaint alleges with respect to all the foregoing that since 7 October 1983 and thereafter, Respondent refused to provide said infor mation in complete and sufficient form The evidence in this respect shows that by letter dated 23 February 1983 the IAM appears for the first time to have protested the Company s practice of discharging new hires before completion of their 45 day probationary period At that time, and on various occasions thereafter, the Union requested certain information pertaining to the treatment of new hires, including payroll records 13 By letter dated 9 March 1983, Respondent answered the 23 February 1983 request attaching a list of all hired employees working for the Company at the time while identifying the area in which each employee was work ing as well as his rate of pay 14 Although the 1982 pay rolls were not submitted, this went unmentioned in later correspondence and by 4 August 1983 IAM s objection to company responses appears to have narrowed to the following Your Company has not been advising the Union of the new [sic] hired employees within five days after the hiring may I use this opportunity to request such information 15 Along this same line, by letter dated 7 October 1983 the IAM again wrote Respondent as follows This is to bring once more to the attention of the company that the Union is entitled to be notified of the hiring of new employees within five (5) days of its hiring please see Section 3 of Article XVIII I have been receiving the names of some employees but at no time it shows the hiring date and rate of pay in addition to their classification I trust you will be able to resolve the above reference matter so the Union will receive the proper information 16 In response, by letter dated 13 October 1983 the Em ployer provided the names of four new hires explaining that it was instituting the use of a new personnel action 13 See G C Exhs 2 and 3 14 This response was excluded by the General Counsel from a series of correspondence pertaining to the information requests See R Exh 2 's See GC Exh 4 "See See G C Exh 6 AIRPORT AVIATION SERVICES 829 form that would serve to provide notice of any adminis trative action taken regarding employees 17 In its initial challenge to the propriety of the Respond ent s submissions, the General Counsel alleges that the information provided on 13 October was incomplete and not sufficient in form to constitute a return pursuant to the Unions request of 7 October 1983 The cited defi ciencies were the failure to disclose (1) the date of initial hire, and (2) the rate of pay the new hires as of that date Thus, each of the personnel action forms actually for warded to the IAM on 13 October 1983, included two distinct dates one described as effective date and the other referencing "Notice of Personnel Action ' IAM representative Maldonado, who testified that the Em ployer s response was incomplete because it failed specif ically to indicate the date of hire, denied that he inter preted the effective date entry as signifying date of hire 18 When questioned about whether he had sought clarification from Respondent about why the personnel form had two different dates and what they meant, Mal donado afforded unbelievable testimony First he related that he had written a series of letters to the Employer telling them that this information was incorrect and re questing the correct information 19 and then stating that he could not recall having otherwise communicated his difficulty in understanding these documents It is con cluded that neither Maldonado nor any other agent of Respondent took steps to clarify any such discrepancies This despite the fact that Respondent pointed out specifi cally in its 13 October letter that the personnel action forms were part of a new system On analysis, it would appear that caution is necessary in this area of the law to avoid unwarranted intrusion in the bargaining process through breakdowns in the corn municative process which could have been avoided by ordinary prudence on behalf of the party seeking a dis closure of information Misunderstanding and even error are to be expected in the process of exchanging informa tion Reconciliation of information within the framework of the give and take process will have a far more salu tary effect than the invocation of Board remedies The former is the practice to be encouraged not the latter Here by the exercise of ordinary diligence the Union could have afforded the Employer an opportunity to correct or clarify its return without need for intervention of the Board Having failed to do so in the circum stances, the Employer rightfully could assume that its return complied with the request Accordingly, it is con cluded that the evidence fails to demonstrate that Re spondent s submission of 13 October 1983 did not consti tute substantial compliance with the obligations imposed 14 See G C Exh 7 This document includes a reference to a letter which was forwarded by Respondent earlier on 9 August 1983 containing the names of new hires The latter was not submitted in evidence 18 Counsel for the General Counsel supplements Maldonado s testimo ny by arguing that the rate of pay shown on these documents does not clearly relate to that in effect on the date of hire 19 No such documents were introduced in evidence and as shall be seen no reference to any confusion generated by the personnel forms was included in the Union s subsequent written correspondence request ing information Indeed shortly thereafter on 26 October 1983 Maldon ado wrote Respondent requesting other information but raised no dissat isfaction with the data supplied on 13 October 1983 See G C Exh 8 by the duty to bargain in good faith, and the allegation that Respondent violated Section 8(a)(5) and (1) in this respect shall be dismissed A further alleged noncompliance stems from IAM s letter dated 26 October 1983, in which Maldonado wrote the Company as follows Since August 9, 1983 you wrote the undersigned that in a few days you were going to submit an up to date list of all employees working for the compa ny The list has not been received as of today May I use this opportunity to request the following infor mation also A Name of all employees, address, hiring date rate of pay and classification of work Your prompt respond [sic] will be appreciated since we have to use some of the information to de termine the 1984 Union dues Respondent reacted promptly On 31 October 1983 it forwarded to IAM a detailed employee listing The fol lowing was incorporated on the cover letter In reference to your request of October 26, 1983, I am pleased to enclose a list of all hired employees (Regular/Part time) working at present for the Company The list is in alphabetical order and it identifies the hiring date, salary and other informa tion relative to the employee We sincerely regret the delay in submitting this information, as this was mainly caused by our inter est of furnishing the right input to the new comput erized system which was recently put into oper ation Here again the information provided was considered incomplete by the General Counsel who relies on Mal donado s testimony set forth below It is incomplete because my request was of all employees working in the contracting unit The letter from the Employer of 31 October 1983 re stricts this information to those he considers regular employees and regular part timers, thus implying that they are those that have approved probationary period of 45 days and it also implies that he left out all the new employees, and there were many Once more there is no evidence that IAM on a timely basis notified Respondent that the submitted listings were in any fashion incomplete Moreover, if the information in complete form was important to the IAM a question arises as to its own neglect For despite the urgency ex pressed in its letter of 26 October, it does not appear that IAM formally protested omissions from the Employer s submission of 31 October until the filing of the first unfair labor practice charge on 2 March 1984 Moreover, considering past submission pertaining to probationary employees and their identity, I am convinced that Re spondent lacked any intention of gaining advantage through a less than complete response and that any omis sions were purely inadvertent and de minimis Once 830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD more, it is concluded that Respondent substantially com- plied with the dictates of Section 8(d) of the Act, and the allegation that it violated 8(a)(3) and (1) of the Act in this respect shall be dismissed. Allegations of the complaint were also addressed to IAM's request for 1982 payrolls. Apparently, this allega- tion finds its origin in IAM's letter dated February 23, 1983, addressed to the Company, which requested the latter to "produce to the Union the payroll of the Com- pany in the last year preceding the receipt of this letter,"20 'together with a further request incorporated in IAM's letter of 27 April 1983 for this very informa- tiion.21 On cross-examination, Maldonado admitted that by letter dated 9 March 1983, the Company responded, providing information concerning where employees were working and their rates of pay with the explanation that the Company's accounting department had been instruct- ed to begin compiling the balance, which was to be pro- vided "within a reasonable time." Beyond that, allega- tions pertaining to the failure to provide the payrolls pursuant to requests as early as February and April 1983, being some 6 months in advance of the 10(b) cutoff date, were clearly time-barred within the intendment of the Act. Nonetheless, shortly before the election, some II months after IAMs most recent request for the payrolls, Maldonado on 21 March 1984, wrote Respondent stating as follows: "I am still waiting for the payroll, requested in my letters in 1983; I am once more requesting that it be furnished me."22 By way of analysis, it is noted that the complaint in this respect alleged that, since 2 September 1983, the IAM requested the 1982 payrolls and that Respondent violated Section 8(a)(5) and (1) of the Act since 7 Octo- ber 1983 by failing to provide the information "in com- plete and sufficient form." In fact, it does not appear that these documents were ever provided. And at no time did IAM make any effort to update its request by seeking more recent payrolls. Yet these more recent documents presumably would throw greater light on important issues affecting validity of the Intervenor's 1984 rival claim for representation. On the other hand, since the payrolls were relevant, and not furnished in response to IAM's request of 21 March 1984, Respondent in this re- spect is deemed to have violated Section 8(a)(5) and (1) of the Act. b. The refusal to discuss grievances covered by the pending unfair labor practice charges A further allegation falling within the preelection period relates to the claim that "Respondent failed and refused to bargain collectively with the Union concern- ing grievances over matters which were the subject of charges pending before the Board." In this connection, by letter dated 20 March 1984 the Union forwarded an "agenda" to Respondent outlining issues for consider- ation at an upcoming grievance meeting. The agenda in- cluded, inter alia, challenges to Respondent's action in 20 See G.C. Exh. 2. 21 See G.C. Exh. 3. 22 See G.C. Exh. 13(a). terminating certain newly hired employees within the 45- day period.23 The meeting was held as scheduled on 27 March 1984. Although the meeting continued throughout the entire business day until approximately 5:30 p.m., according to Santiago Quinonez-Torres, Angel Colon, and Maldon- ado, all witnesses for the General Counsel, Bauzo .refused to discuss, deal with, or provide an answer to those grievances that were based on allegations pending before the National Labor Relations Board.24 All other griev- ances on the agenda proposed by the Union were dis- cussed. As a general rule "the pendency of unfair labor prac- tice charges against an employer does not relieve :it of its duty to bargain with the union filing those charges and . . . a refusal to bargain because of pending charges con- stitutes bad-faith bargaining on its part." Zenith Radio Corp., 187 NLRB 785 (1971); Pine Manor Nursing Home, 230 NLRB 320, 326 (1977). The precedent, however, in- volved blanket, outright, across-the-board refusals to meet. Here, the Employer continued to recognize and bargain with the IAM and treated with a formidable list of grievances raising issues that were not before the Board. Its limited refusal in no way threatened the viabil- ity of the basic bargaining relationship. Nor did it ob- struct the overall functioning of the process of grievance resolution. In the circumstances, Bauzo's position was ex- pressed in exceptional circumstances and is deemed a privileged acquiescence to the IAMs own preference that certain grievances be resolved outside the frame- work of contractual remedies, in order that others may be fully and expeditiously addressed within that process. Accordingly, the 8(a)(5) and (1) allegation in this respect shall be dismissed. c. Abrogation of the grievance procedure On 16 January 1984, the Intervenor filed its petition in Case 24-RC-6852. Thereafter, following a hiatus of sev- eral months in its correspondence , the IAM, by letter of 10 February 1984, informed Respondent as follows: "Due to the fact that at this time there is a petition for election where our representative status is questioned, there can be no bargaining."25 As indicated before, the Company met with the Union on 27 March at a second -step session to discuss a number of grievances. This was followed by the election con- ducted on 29 March 1984. The contract expired on 11 23 See G.C. Exh. 12. 24 Bauzo testified that it was his understanding that those items that were subject to resolution in the Board proceeding would necessarily pertain to matters in which the parties had exhausted all reasonable means for resolution. Bauzo claims that those matters were dropped on his suggestion that the higher authorities should resolve them. According to Bauzo, Maldonado agreed with this proposal and on that basis, these matters were no longer discussed . In this connection, although there may have been an innocent misunderstanding, I am inclined to give the benefit of the doubt to the General Counsel's witnesses. 25 See R. Exh. 3. IAM was mistaken in this respect. Under the law in effect at the time, despite pendency of the election petition, Respondent remained obligated to continue to bargain in good faith with the incum- bent representative. See RCA Del Caribe, 262 NLRB 963 (1982). Cf. Crown Cork de Puerto Rico, Inc., 273 NLRB 243, 244 fn. 6 (1984). AIRPORT AVIATION SERVICES April 1984 Thereafter, on 2 May 1984, IAM wrote Re spondent as follows You have not answered grievances discussed on March 27, 1984, identified in my March 20, 1984 letter This action constitutes an additional violation of the agreement, Article XXIII, as well as a viola tion of the Labor Management Act, Section 8(a)(5) I am once more soliciting an answer in each indi vidual case inasmuch as in some cases, such as the ones involving Juan C Lopez and Jose M Cande lano, you expressed the possibility of a solution Regarding the negative ones, the reason given by you for your rejection will indubitably [sic] help identify the differences between the parties The records must also reflect that, as concerns the cases before the National Board, you have stated that they would not be discussed because they are now before the forum Your prompt attention to this matter is expected but if no reply is received within five days, I must assume that it is not your intention to give us a reply and we will proceed to take appropriate action to see to it that you fulfill your responsibility towards this organization 26 By virtue of the subsisting collective bargaining agree ment, management is required to respond to second step grievances in writing within 5 working days 27 It does not appear that Respondent ever complied with this re quirement The only followup action taken by Respond ent with respect to the IAM s letter of 2 May, was the following expression of position appearing in its letter dated 23 May, which informed IAM as follows We feel, and understand that this is the way you also feel as expressed in your February 10, 1984 letter, that since there is, at the present time a lull in the counting of the ballots cast in the past elec tion, where the representative status of the IAM is questioned, and based on the recent NLRB decision in the case of Gourmet Foods Inc, our company cannot, at this moment answer the current gnev ances since this would entail implicit negotiation and, at the present time, we are hindered from en gaging in such activity worse still unfair labor practice charges could be filed against us at the Na tional Labor Relations Board by UITA (Interve nor), who alleges that our agreement expired on April 11 1984 because there is no extension of same signed by the IAM and the Company and who attack at the same time, the majority position wielded by the IAM and claim they have such a majority [sic] I hope you will understand our position and wait patiently for the certification of the past election and for a clarification of your representative status 28 Thus, Respondent, like IAM was mistaken 26See GC Exh 15 21 See Jt Exh I art XXIII sec 2(b) p 37 28 See G C Exh 16(a) 831 in its view of the impact of the question concerning representation upon its duty to bargain in good faith 29 Although the wording of the above letter would appear to raise broader issues than litigated in this pro ceeding, and the entire matter is frought with ambiguity, the broad declarations in Respondents letter of 23 May were apparently addressed to all outstanding issues, in cluding IAM's request that it provide written statements of its position regarding grievances that arose while the contract remained viable As it does not appear that Re spondent ever met its obligation under the contract in this respect, its action constituted a unilateral modifica tion violative of Section 8(d) and 8(a)(5) and (1) of the Act American Sink Top & Cabinet Co, 242 NLRB 408 (1979), Digmor Equipment & Engineering Co, 261 NLRB 1175 (1982) 3 Postelection refusals to provide information and the withdrawal of recognition It will be recalled that the election was conducted on 29 March 1984 Less than 2 weeks later, on 11 April, the most recent collective bargaining agreement between the IAM and Respondent expired Respondent's president, Will Santana, testified that around the first week of June 1984 an employee ap proached him delivering a set of documents, including a cover letter, dated 25 May 1984, which stated as follows Submitted herewith are signatures where employees of Airport Aviation Services, Inc [and] mem bers of the contracting unit covered by the collec tive bargaining agreement between International Association of Machinists and Aerospace Workers Local 2725 and the AAS do not authorize said Union (I A M) to negotiate a collective bargaining agreement in relation to terms and conditions of our employment or to represent us in any way [sic] Appended was a listing of signatures purporting to be those of some 150 members of the collective bargaining unit 30 According to the uncontradicted testimony of Santana, he directed that the document be forwarded to the accounting department for verification of social secu my numbers as well as comparison of signatures against samples held within the payroll department Following this process Santana concluded that the signatures were true and accurate and were representative of a majority of the bargaining unit employees In the meantime, by letter dated 6 June 1984 notwith standing his prior letter of 10 February, Maldonado on behalf of IAM, wrote Respondent requesting an opening 29 The reference to Gourmet Foods 270 NLRB 578 ( 1984) appears misplaced That decision relates to the efficacy of minority bargaining orders under NLRB v Gissel Packing Co 395 U S 575 ( 1969) an issue that in no way relates to the Employer s bargaining obligation in the face of a genuine claim for representation on behalf of a rival labor orgamza Lion See RCA Del Canbe supra so See G C Exh 7 This document was submitted in tandem with an other whereby employees sought to deauthonze checkoff to IAM See R Exh 8 832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of contract renewal negotiations, while (1) requesting in formation concerning the name, date of hire address classification and wage scales of all workers hired since submission of the Excelsior list in Case 24-RC-6852, (2) requesting the names of all persons discharged after 28 April 1984, and (3) the cost of the existing medical plan-individual and family Finally the letter went on to request the work schedule of all workers in the bar gaining unit as well as an explanation of why 2 work days had been given to regular part timers in the first week of June 1984 when Respondent had previously re jected such a request 311 By letter of the same day, Respondent informed IAM that the request had been forwarded to its attorney for evaluation and advice 32 Finally by letter dated 14 August 1984, Respondent wrote Maldonado as follows Taking in consideration the evidence submitted to this office by a group of employees we have reasonable doubts that IAM represents the majority of the employees in the bargaining unit This doubt is based on documents signed by employees in which they deauthorized the dues check off on behalf of IAM and on the other hand do not au thonze any negotiation between AAS and the Union you represent For this reason we are unable to deal in the matters mentioned by you at this time We are confident that once the case is pending before the National Labor Relations Board are heard and the votes cast in the recent elections are counted, said Board will announce which Union will have the legitimate representation of the em ployees [sic]33 The complaint alleges that Respondent violated Sec tion 8(a)(5) and (1) of the Act not only by its failure to provide the information requested in IAM s letter of 6 June, but also by the withdrawal of recognition on 14 August 1984 The basic ground rules for reconciling the employers options when confronted with evidence of employee defections were outlined in Terrell Machine Co, 173 NLRB 1480 1480-1481 (1969) as follows It is well settled that a certified union, upon expira tion of the first year following its certification [or voluntary recognition], enjoys a rebuttable pre sumption that its majority representative status con tinues This presumption is designed to promote sta bility in collective bargaining relationships without impairing the free choice of employees According ly once the presumption is shown to be operative a prima facie case is established that an employer is obligated to bargain and that its refusal to do so would be unlawful The prima facie case may be re butted if the employer affirmatively establishes either (1) that at the time of the refusal the union in fact no longer enjoyed majority representative status or (2) that the employers refusal was predi 31 See G C Exh 19(a) 3 z See R Exh 20(a) 33 See G C Exh 23(a) cated on a good faith and reasonably grounded doubt of the union s continued majority status In the instant case, at the time of the withdrawal, the contract had expired and hence the presumption that the IAM, as the incumbent representative, continued to rep resent a majority was subject to rebuttal on a showing of objective considerations affording a reasonable basis for doubt that it continued to represent a majority See, e g, United States Gypsum Mfg Co, 151 NLRB 1482 (1965) Moreover in this case, the General Counsel does not dis pute the transmittal to the Employer at a time reasonably contemporaneous with the Union s request for informa tion on June 6 Instead, the General Counsel relies on equally well es tablished authority which precludes assertion of doubt of majority in the context of unremedied unfair labor prac tices, a limitation designed to preserve the bargaining re lationship where serious violations of the Act tend to produce disaffections from a union,' Anvil Products, 205 NLRB 709 fn 1 (1973) This does not mean that every unfair labor practice will override that which in the total circumstances, seemingly appears as the clear, un coerced choice of bargianing unit personnel Thus absent a rational basis for concluding that unlawful con duct tends to bear a causal link with mass defections from a union, Board remedies will not be invoked to per petuate an unwanted bargaining relationship 34 Here only two violations predated the emerging doubt of ma jority Both were free from animus and constituted tech nical noncompliances with Respondents duty to bargain in good faith Neither had a direct adverse impact on wages or benefits and their long term effects were imper ceptible at the time of the deauthorization activity The first violation involving Respondents failure to furnish 1982 payrolls was in a context marked by Respondent s repeated submissions of payroll data in other forms in re sponse to IAM requests Moreover the 1982 payroll re flected on conditions existing more than a year before the Intervenor filed its election petition and would clear ly be less illuminating than payrolls actually obtained by the General Counsel in response to subpoenas served on Respondent in this proceeding A more serious violation was evident from Respondents failure to furnish re sponses to the 27 March grievances as requesed by the Union s letter of 2 May However evidence surrounding this breach is vague and its impact on the relationship too conjectural to warrant an inference that employee al legiances were influenced thereby to any significant extent Accordingly, it is concluded that these technical violations of Section 8(a)(5) of the Act neither in and of themselves, nor by virtue of their effect on important IAM interests influenced or in any way tainted directly or indirectly, employee repudiation of that union Hence prior illegalities did not in any way preclude the lawful ness of subsequent action taken by Respondent in light of evidence that IAM had suffered a loss of majority See, e g Deblm Mfg Corp, supra, Chet Monez Ford, 241 NLRB 349 (1979) enfd sub nom NLRB v Chet Monez ' Deblin Mfg Corp 208 NLRB 392 401 (1974) AIRPORT AVIATION SERVICES Ford, 624 F 2d 193 (9th Cir 1980) Accordingly, it is found that Respondent did not violate Section 8(a)(5) and (1) of the Act by withdrawing recognition from IAM on 14 August 1984 35 In light of this conclusion, an identical result is war ranted regarding the allegations that Respondent violated Section 8(a)(5) and (1) of the Act by various changes in conditions of work on and after 14 August 1984, includ ing Respondent's unilateral changes in shift bidding pro cedures, disavowal of contractual disciplinary proce dures, elimination of the coordinator classification, re fusal to contribute to the Christmas party, and refusal to select an arbitrator at IAM's request 4 The alleged threat of reprisal The complaint alleged that Respondent violated Sec tion 8(a)(1) of the Act through President Tony Santana s alleged threat of unspecified reprisals in an incident oc curnng several months after the withdrawal of recogni tion In this connection, Santiago Quinonez Gamboa, an incumbent employee at the time of the hearing, testified that he attended an arbitration proceeding on 17 and 18 October 1984 He claimed that the next day, 19 October, in the presence of coworkers Angel Colon, Raul Garcia, and Jaime Cosme, Santana questioned Gamboa about why he had testified at the two arbitration proceedings indicating that his having done so caused Santana harm Quinonez informed Santana that he participated in the arbitration because he had been summoned by the Union Santana allegedly argued that Quinonez did not have to go, stating further that Gamboa was looking for prob lems, in that respect 36 Of the three other employees that Quinonez named as present during this incident, Angelo Colon, was the only one called by the General Counsel Colon who also participated in the arbitration proceed ing, but was not approached by Santana, did not com pletely corroborate critical aspects of Gamboa's account He testified that on the occasion in question he heard Santana tell Gamboa that he did not have to submit' any case for arbitration, that he did not have to go the arbitration proceeding, and that Gamboa s father, a former IAM official was the one who had told Gamboa to submit those cases Colon asserts that although he then walked away and heard nothing further Santana appeared to be upset and aggressive and used obscene words He went on to relate that after the incident Gamboa discussed the incident with him, but Colon could not recall that Gamboa complained that he had been threatened by Santana 35 The 8(a)(5) and (1) allegation based on the Respondents failure to provide the information requested in IAM s letter of 6 June is also dis missed That request was received at a time contemporaneous with the Respondent s receipt of a showing furnishing a reasonably based doubt of majority The signatures purported to precede the Union s 6 June re quest During the period that this request went unanswered Respondent was endeavoring to obtain legal advice Subsequently Respondent having withdrawn recognition based on events existing at the time of the request for information was privileged to consider its obligation to fur rash the additional information as having been abated 36 Gamboa in his preheanng affidavit averred that Santana expressed a specific threat of discharge In that document he also related under oath that he told Santana in response that if he wished to discharge me go ahead and do it that I was causing him no harm See R Exh I 833 It is true that Santana was not examined as to the inci dent and that Gamboa was an incumbent employee at the time he testified Moreover, no doubt is held that an incident occurred in which heated words were ex changed Nonetheless based on my observation of Gamboa and considering the inconsistencies in his pre hearing affidavit, and the absence of any corroboration as to alleged threatening remarks, he was not regarded as a reliable witness Accordingly, the 8(a)(1) allegation in this respect shall be dismissed as unsubstantiated by cred ible proof CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 International Association of Machinists and Aero space Workers, AFL-CIO Local 2725 and Union Inde pendiente de Trabajadores de Aeropuertos are labor or ganizations within the meaning of Section 2(5) of the Act 3 Respondent violated Section 8(a)(5) and (1) of the Act by refusing since 21 March 1984 to furnish copies of its 1982 payroll to IAM in order that the latter might perform its duties as exclusive collective bargaining rep resentative 4 Respondent violated Section 8(a)(1) of the Act by failing to provide IAM with written statements of posi tion with respect to pending grievances 5 Respondent did not violate the Act in any other re spect 6 The unfair labor practices set forth in paragraph 3 above are unfair labor practices having an effect on com merce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of the Act, it shall be recommended that it be ordered to cease and desist therefrom and to take certain appropriate action to effectuate the purposes and the policies of the Act Apart from the posting of a conventional bilingual notice, an affirmative provision requiring Respondent to furnish properly requested information shall be included in the recommended order on a conditional basis Thus, on disposition of the question concerning representation in Case 24-RC-6852 should IAM be certified as the ex clusive representative of employees Respondent shall be ordered to, on request provide relevant and necessary information to that labor organization On the other hand, if the Intervenor or no union achieves a lawful ma jonty this provision shall be considered null and void On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed37 97 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses 834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, Airport Aviation Airport Services Incorporated, Isla Verde, Puerto Rico, its officers, agents, representatives, and assigns, shall 1 Cease and desist from (a) Refusing, on request, to furnish the exclusive repre sentatives of its employees information relevant and nec essary to the performance of its duties as exclusive col lective bargaining representative (b) Modifying the terms of an existing collective bar gaining agreement, without assent of the statutory repre sentative, by refusing to provide written answers to second step grievances 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) In the event that International Association of Ma chmists and Aerospace Workers, AFL-CIO, Local 2725 is designated as a certified collective bargaining agent of employees in the appropriate unit, furnish to that labor organization copies of the 1982 payroll, as well as any other information requested which is relevant or neces sary to the performance of its duties as certified bargain ing agent (b) Post at its terminals at the San Juan International Airport, Isla Verde, Puerto Rico, in both English and Spanish, copies of the attached notice marked 'Appen dix "38 Copies of the notice, on forms provided by the Regional Director for Region 24, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus tomanly posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered de faced, or covered by any other material 39 38 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 19 If International Association of Machinists and Aerospace Workers AFL-CIO Local 2725 is designated as exclusive collective bargaining (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply representative of employees in the appropriate unit in Case 24-RC-6852 add the following paragraph to the attached notice WE WILL on request furnish to International Association of Ma chimsts and Aerospace Workers AFL-CIO Local 2725 information reasonably necessary for that organization to fulfill its responsibility to you as your exclusive collective bargaining representative APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, ,loin, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities Accordingly, we give you these assurances WE WILL NOT refuse to provide information requested by the exclusive statutory representative of our employ ees if necessary and relevant to the performance of its duty to represent you with respect to wages, hours and terms and conditions of employment WE WILL NOT modify the terms of an existing collec tive bargaining agreement without assent of your exclu sive statutory bargaining representative AIRPORT AVIATION SERVICES INCORPO RATED